Last Friday, the U.S. EPA scored a big victory against industry opponents who challenged the Agency’s authority and efforts to establish a cleanup strategy for the Chesapeake Bay. The U.S. District Court for the Middle District of Pennsylvania ruled in favor of EPA upholding the total maximum daily load (TMDL) scheme for the Bay restoration efforts. Bay TMDL Order I have former clients and friends on both sides of this notable litigation, so win, lose or draw, there would have been no victory lap for me.
Many years have passed since efforts began to cleanup the Bay, and the TMDL is an essential component to finishing that work. This TMDL was created through rough and tumble, hardball negotiations between EPA and the six participating States (NY, PA, DE, WV, MD, and VA) and the District of Columbia and, on balance, I think reflects a fair demonstration of cooperative federalism, including tough “federal backstops,” which provide the federal muscle in the event the states fail to live up to their bargain. Judge Rambo’s 99-page decision appears to be thorough and well- reasoned, although no doubt the decision will be appealled. I leave you with Judge Rambo’s concluding statements.
Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow. In accordance with the deferential standards applicable to a court’s review of an agency’s actions, this court must give EPA’s interpretation of the CWA and its use of scientific models and data due deference in light of EPA’s scientific and technical expertise. Plaintiffs are charged with the heavy burden of showing that the issuance of the Bay TMDL was arbitrary and capricious, and that EPA’s use of modeling and data bore no rational relationship to the realities they purport to represent. Having carefully considered Plaintiffs’ arguments, and the applicable portions of the administrative record related thereto, the court concludes that Plaintiffs have failed to meet this burden. The court further concludes that the procedures established to ensure public participation in the TMDL drafting process were sufficient to withstand scrutiny under the APA.
In closing, the court offers the following. The ecological and economic importance of the Chesapeake Bay is well-documented. As the largest estuary in the United States, the Chesapeake Bay is essential for the well-being of many living things. The record demonstrates extensive efforts on behalf of the Bay Partnership to protect this important resource. And yet, nutrient pollution and sedimentation remain a critical concern. Relevant to the legal challenges subjudice, the record reveals that the Partnership undertook significant efforts topreserve the framework of cooperative federalism, as envisioned by the CWA, and that EPA did not unlawfully infringe on the Bay states’ rights because the CWA is an “all-compassing” and “comprehensive” statute that envisions a strong federal role for ensuring pollution reduction.
Indeed, considering the numerous complexities of regulating an interstate water body, EPA’s role is critical to coordinating the Bay Jurisdictions’ efforts to ensure pollution reduction. In short, the court concludes that the framework established by the Bay Partnership in developing the Bay TMDL is consistent with the provisions of the CWA and APA. Accordingly, the court will grant Defendant EPA’s and Defendant-Intervenor Municipal Associations Group’s cross-motions for summary judgment and will deny Plaintiffs’ motion for summary judgment. An appropriate order will issue.
We just spent a couple days in the oldest continuously occupied European settlement in the US, and I was reminded of the unique history of the Chesapeake in Judge Rambo’s observation that, “The ecological and economic importance of the Chesapeake Bay is well-documented. As the largest estuary in the United States, the Chesapeake Bay is essential for the well-being of many living things.” The Chesapeake is arguably the oldest area, continuously under European style farming and cultivation, since Europeans began arriving in the Americas. Perhaps the Chesapeake is the appropriate place to settle these questions of “cooperative federalism.” Brent, thanks for linking the memorandum. The first question that popped into my mind was, “how will this be applied?” There’s a lot in there to digest, but it was really helpful to see “how” the EPA proposes to monitor and regulate water quality flowing into the bay.
Bo, thanks for the history – very cool. The cleanup effort will be applied by authority of the state. Interestingly, EPA has no authority under the CWA to implement or enforce the TMDL, but can make the failure to implement by the states very painful.